Judge Denies Family's Request For New Trial

Relatives Of A Leesburg Man Who Died After A Police Chase Cited Eight ''reversible Errors.''

February 27, 1996|By Frank Stanfield of The Sentinel Staff

TAVARES — A Leesburg family that unsuccessfully sued police after a man died in a high-speed chase lost a bid Monday for a new trial.

Circuit Judge Jerry Lockett rejected a motion for a new trial by the family of Robert Whitton. Lockett, who was the judge during the civil trial in December, denied a motion to set aside the jury verdict in favor of the Leesburg Police Department.

Whitton, 21, died Nov. 2, 1991, when he lost control of his motorcycle while fleeing police on Dixie Avenue at 85 mph. His motorcycle slammed into a concrete sign in front of a dentist's office.

Leesburg Officer Pernell Mitchell testified he was following in his patrol car at 75 mph, despite a department policy that stated officers were not to exceed the speed limit by 20 mph. The speed limit on Dixie Avenue is 40 and 35 mph.

Whitton family attorney J. Ross Davis cited what he called eight ''reversible errors'' in his motion for a new trial, including a medical examiner's testimony that Whitton's blood-alcohol level was at 0.07.

''That's irrelevant, immaterial and unfairly prejudicial,'' Davis said of the alcohol testimony during a hearing Monday in the judge's chambers. Lockett was the trial judge in the lawsuit.

Davis also objected to the pathologist giving his opinion that the blood-alcohol level could have had an effect on Whitton's judgment. The legal intoxication limit in 1991 was a blood alcohol level of .10. The current legal limit is .08.

Andy DeBevoise, the attorney who represented the Police Department's insurance company, said such evidence was admissible under Florida law for civil trials.

Davis also argued that two pieces of information were irrelevant to the case: that Whitton's license had been suspended for a traffic fine and that he did not have a motorcycle ''endorsement'' on his license. DeBevoise argued that those facts established motive and Whitton's state of mind.

Mitchell testified during the trial that he spotted Whitton parked in a high-crime neighborhood at 2:35 a.m. The officer, who had been on the force for nine months, stopped and backed up to see whether Whitton needed help with his bike. He said the motorcyclist ''left hastily,'' running stop signs and speeding to get away.

Davis objected to the high-crime depiction of the neighborhood. DeBevoise said the testimony about the neighborhood was brought up by Mitchell, who said he was only trying to see whether Whitton needed assistance.

Davis also objected to information not heard by jurors, including facts about a prior high-speed chase by another officer and department training tapes on high-speed chases.

DeBevoise replied that those things were irrelevant and the training tapes, mentioning the danger of ''million-dollar verdicts,'' would have prejudiced the jury against the police.

Davis also argued that jurors should have been told that the city later removed the 20 mph cap for chases ''to avoid liability, not injury.''

Davis also objected to the testimony of a newspaper carrier, who estimated the speed of Whitton's motorcycle on Dixie.

DeBevoise said the carrier, Gordon Richards, was a longtime motorcycle rider.

In the end, Davis lost all of his arguments.

Friends of Whitton's parents, Edward and Antonia Whitton, said the family members were devastated by the tragedy.

''They were not the same people after the accident,'' Lee Ann Gilson testified during the trial.